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ELCPartially Allowed· [2022] KEELC 2419 (KLR)

Kinyua & 3 others (Suing as the legal representative of the estate of Francis Karandi Mwirichia – Deceased) v Kaigongi (Sued as the legal administratix of the Estate of Sabelio Kinoti – Deceased) (Environment & Land Case 301 of 2017) [2022] KEELC 2419 (KLR)

Environment and Land Court
4 May 2022
3,063 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed family land registered in one person's name can be shared through customary trust, even decades later.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Francis Karandi Mwirichia, sued the defendant, legal representative of the estate of Sabelio Kinoti, claiming that L.R No. Abothuguchi/L-Kaongo/424 was bought by their grandmother Colleta Kabugi and registered in the name of her elder son Sabelio Kinoti under Ameru customary law (women then being unable to hold registered titles), to hold in trust for the family. They sought a stay of Githongo SRMC Succession Cause No. 22 of 2016, a declaration of customary trust over half the suit land, and a permanent injunction. The defendant denied the trust, asserted her father bought the land, contended the plaintiffs occupied different parcels, and argued the claim was time-barred and raised only after 34 years. The court framed two issues: whether a customary trust was pleaded and proved, and entitlement to the prayers. Applying the Kiebia v Isaaya Theuri elements, the court accepted the plaintiffs' evidence that Colleta Kabugi bought the land for her two sons, that both branches of the family occupied and buried their dead on the land, that no eviction was ever sought, and that delay does not bar trust claims per section 20(1) of the Limitation of Actions Act (Re Estate of Charles Ngotho Gachunga). It rejected the defendant's purchase narrative as uncorroborated. The court found the trust proved and allowed prayers 1 and 2 of the plaint, with costs to the plaintiffs; no order was made on the permanent injunction, so the suit succeeded only partially.

Key legal issues

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01

Whether the plaintiffs pleaded and proved a customary trust over L.R No. Abothuguchi/L-Kaongo/424

Holding

The court found the customary trust proved: the land was bought by Colleta Kabugi for her two sons and their families, and registered in the name of her elder son in line with Meru customs because a female could not be registered at the time

Reasoning

The court accepted the plaintiffs' consistent evidence that Colleta Kabugi purchased the suit land and had it registered in her elder son's name under Ameru customary norms, since women could not hold registered titles then. Both parties' parents were buried on the land, and the defendant never sought eviction. The court concluded the land was family land held for both branches of the family, satisfying the Kiebia elements.

p. 6
02

Whether the claim was defeated by delay or non-assertion of the trust during the claimant's lifetime

Holding

No - delay does not defeat a claim founded on trust or fiduciary relationship, which is not subject to limitation under section 20(1) of the Limitation of Actions Act

Reasoning

The defendant argued that neither the plaintiffs' father nor the grandmother asserted the trust during their lifetimes, waiting 34 years. The court relied on Musyoka J's decision in Re Estate of Charles Ngotho Gachunga to the effect that limitation does not apply to trusts or fiduciary relationships. This disposed of the defendant's laches-style objection.

p. 5
03

Whether the defendant's claim that her late father bought the land was established

Holding

The court rejected the defendant's assertion, noting she was about three years old when her father died, produced no purchase agreement, and called no seller as witness

Reasoning

The court found the defendant's account unmerited: she was an infant at her father's death and could not corroborate the alleged purchase; DW2 confirmed no sale agreement existed since agreements were not written at the time. Against this, both the plaintiffs' father and the grandmother were interred on the land and their families remained in occupation without objection.

p. 5

Legal principles established

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  • The elements of a customary trust are: the land was before registration family, clan or group land; the claimant belongs to that family, clan or group; the relationship is not remote; the claimant could have been registered as owner or beneficiary save for intervening circumstances; and the claim is directed against a registered proprietor who is a member of the family, clan or group
  • There is no limitation of action where a trust or fiduciary relationship is involved, under section 20(1) of the Limitation of Actions Act
  • A woman who returns to her parents upon divorce or otherwise remains unmarried is entitled to the land she actually lives on and depends upon, and as a child of the deceased is also entitled to distribution of the land

Court orders

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  1. 1.Prayers 1 and 2 of the plaint dated October 4, 2017 (stay of the Githongo SRMC Succession Cause No. 22 of 2016 and declaration of customary trust of half share of the suit land) are allowed
  2. 2.Costs to the plaintiffs

Authorities

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Legislation

  • Limitation of Actions ActSection 20(1)

Cases cited (9)

  • Kiebia v Isaaya Theuri
    (2018) eKLR
  • Mbui Mukangu v Gerald Mutwiri Mbui
    (2004) eKLR
  • Justus Maina Muruku v Jane Waithira Mwangi
    (2018) eKLR
  • Peter Ndung'u Njenga vs Sophia Watiri Ndung'u
    (2000) eKLR
  • Alice Wairimu Macharia v Kirigo Philip Macharia
    (2019) eKLR
  • Juletabi African Adventure Ltd & another v Christopher Michael Lockley
    (2017) eKLR
  • In Re. Estate of Charles Ngotho Gachunga (deceased)
    (2015) eKLR
  • Eunice Karimi Kibunja v Mwirigi M'Ringera Kibunja
    (2013) eKLR
  • Stanley Iriga M'Mwitari v Mercy Kanyiri Gatekia & 2 others
    (2022) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (claim founded on customary trust over L.R No. Abothuguchi/L-Kaongo/424)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kinyua & 3 others (Suing as the legal representative of the estate of Francis Karandi Mwirichia – Deceased) v Kaigongi (Sued as the legal administratix of the Estate of Sabelio Kinoti – Deceased) (Environment & Land Case 301 of 2017) [2022] KEELC 2419 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2419/eng@2022-05-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.